This week has brought another precedent-setting legal victory for species protected under Canada’s Species at Risk Act (SARA). In 2007, environmental groups filed a lawsuit regarding the Department of Fisheries and Oceans’ SARA recovery strategy for the Nooksack Dace, an endangered minnow that is found in Canada in only four streams in British Columbia. The recovery strategy did not include an identification of the species’ critical habitat, despite NGOs including Nature Canada telling them that it could be identified. This was backed up by a scientist on the recovery team, whose maps and descriptions of critical habitat for the fish were stripped out of the recovery strategy by DFO before it was finalized.
On Wednesday, the federal court judge ruled in favour of the environmental groups and the fish. The judge found that the Fisheries Minister was using an unlawful policy direction for recovery strategies in BC, choosing to not identify critical habitat in recovery strategies even though SARA states that there is an obligation to do so to the extent possible using the best available information. This unlawful policy was applied not only to Nooksack Dace, but to at least 20 other endangered or threatened aquatic species in BC. The judge also determined that critical habitat for a species at risk is not merely an area on a map, but the suite of biophysical attributes that are critical to the species. This will help to ensure that the identification and protection of critical habitat will encompass all of the characteristics necessary to ensure the survival and recovery of a species.
The repercussions of this ruling extend far beyond just the identification of critical habitat for these 20 species. The case sets a strong precedent for the obligation to identify critical habitat in all SARA recovery strategies. It also comes close on the heels of another important court decision where a federal judge ruled that the federal government acted unreasonably by not identifying critical habitat in a recovery plan for the endangered Greater Sage Grouse.
This fall, Canadian Parliament will resume its legislative review of the Species at Risk Act. Nature Canada, the David Suzuki Foundation, Ecojustice and Environmental Defence will be there to ensure that the inadequacies in SARA implementation that have been highlighted by these court cases are thoroughly examined and acted on.
photo: Nooksack Dace